The Police Officer, NCJIS and Exceeding Authorized Access

A superseding indictment returned by a federal grand jury charges Kevin Cave “with intentionally exceeding authorized access to a protected computer for private financial gain in violation of  § 1030(a)(2)(C) and (c)(2)(B)(i).”  U.S. v. Cave, 2013 WL 3766550 (U.S. District Court for the District of Nebraska 2013).  He filed a motion to dismiss the superseding indictment, claiming it “fails to state an offense.”  U.S. v. Cave, supra.  The motion would have been made under Federal Rules of Criminal Procedure Rule 12(b)(3)(B). 

The U.S. District Court judge who has the case referred the motion to a U.S. Magistrate Judge to review it and decide whether it should be granted; pursuant to the usual procedure, the Magistrate Judge considered the motion, and held a hearing on the matter. U.S. v. Cave, supra.   He issued a Report and Recommendation (R&R) that was reviewed by the district court judge, who decided whether to accept the recommendation the Magistrate Judge made. U.S. v. Cave, supra.

The R&R says Cave was “an officer with the Omaha Police Department from September 23, 2002, until September 7, 2012.” U.S. v. Cave, supra. As an OPD officer, Cave was

Train[ed] on the use of the Nebraska Criminal Justice Information System database (NCJIS). . . . NCJIS allows approved agencies to link to databases that provide information including criminal history information, driver's license information, employment information, information from penal institutions, and probation and parole information. . . .

Before accessing NCJIS, approved agencies must sign a memorandum of understanding (MOU) acknowledging the confidentiality of the information found on NCJIS. . . . Approved agencies then train users within the agency on these regulations. . . . Information found within NCJIS is for use by law enforcement personnel within their official capacity only and is not to be made public. . . .

U.S. v. Cave, supra.  The R&R also explains that OPD is an agency authorized to

use NCJIS. . . . Cave completed training and was authorized to use NCJIS on January 24, 2008, and remained authorized until September 7, 2012. . . . The government alleges that beginning on March 2, 2010, until August 21, 2012, Cave conducted unauthorized NCJIS database searches in an effort to locate certain individuals and disseminated the information to car dealerships attempting to repossess vehicles. . . .

The government alleges the car dealerships paid Cave up to $200.00 for each lead and he received a total of about $16,050.00. . . . The government alleges Cave violated 18 U.S. Code § 1030(a)(2)(C) and (c)(2)(B)(i) by exceeding his authorized access to NCJIS and obtaining information that he then made public for personal financial gain. . . .

U.S. v. Cave, supra. 

In his motion, Cave argued that the superseding indictment

should be dismissed because it `fails to state an offense for the reason the government has pled facts tending to show that [he] misappropriated information, not that he was without authorization or exceeded his authorization in accessing such information.’ . . . Cave contends he did not `exceed authorized access’ within the plain meaning of the phrase under [§1030]. . . . Cave also contends that legislative history leans towards a narrow interpretation of the phrase `exceeds authorized access’ which would exclude the misuse of information. . . .

U.S. v. Cave, supra. 

In earlier posts, I have noted that 18 U.S. Code § 1030(a) creates two “access” crimes: the “outsider” crime (access a computer without being authorized to do so) and the “insider” crime (being authorized to access a computer, the person exceeds the scope of their authorization to do so).  In other posts, I have noted that the applicability of the first crime is usually factually and legally straightforward, while the applicability of the second crime, the “insider” crime, can be more challenging. 

In his legislative history argument, Cave claimed that “looking into legislative history behind [18 U.S. Code § 1030] would support” a “more narrow interpretation of the phrase `exceeds authorized access’”. U.S. v. Cave, supra.  More precisely, he claimed “the original purpose of the statute" was "`to prohibit electronic trespassing, not the subsequent use or misuse of information.’” U.S. v. Cave, supra.  In his R&R, the Magistrate Judge explained that in in 1986, the U.S. Senate changed the

wording of [§1030]. In Senate Report No. 99–432, the Senate explained, `Section 2(c) substitutes the phrase “exceeds authorized access” for the more cumbersome phrase in present 18 U.S. Code § 1030(a)(1) and (a)(2), “or having accessed a computer with authorization, uses the opportunity such access provides for purposes to which such authorization does not extend”’. The Committee intends this change to simplify the language[.]. S. Rep. No. 99–432, at *9 (1983). . . .

Cave contends that . . . the Senate meant to eliminate coverage of the phrase, `or having accessed a computer with authorization, uses the opportunity such access provides for purposes to which such authorization does not extend.’ . . . Cave asserts that because the coverage of this phrase is eliminated, if Congress had intended this area to be covered Congress would have included coverage under the statute.

U.S. v. Cave, supra. 

The Magistrate Judge was not convinced.  He noted that “[i]n the 1986 Senate report, the Senators stated that the reasoning behind changing the language was only `to simplify the language’ and not to change the scope of the coverage as alleged by” Cave. U.S. v. Cave, supra.  He then found that “because the intent of the legislature as to § 1030(a)(2) was only to simplify the language, the scope of coverage was not changed, therefore using access for purposes to which authorization does not extend remains within the scope of” 18 U.S. Code § 1030(a)(2)(C). U.S. v. Cave, supra. 

The Magistrate Judge next took up Cave’s other argument, i.e., that the superseding indictment should be dismissed because its factual allegations did not show that he exceeded his authorized access to the NCJIS system. U.S. v. Cave, supra.  He began by noting that 18 U.S. Code § 1030 provides that whoever

`intentionally accesses a computer without authorization or exceeds authorized access and thereby obtains . . . information . . . shall be guilty of a felony.’ The phrase `exceeds authorized access’ . . . means, `to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.’ 18 U.S. Code § 1030(a)(2)(C).

`A person is “without authorization” when an individual either (1) has never been granted access to the computer yet obtains access to the computer without the access-grantor's permission, or (2) has been granted access as the access-grantor's agent but loses authorization to access the computer when the agent breaches his duty of loyalty.’ NCMIC Fin. Corp. v. Artino, 638 F.Supp.2d 1042 (U.S. District Court for the Southern District of Iowa 2009). `Both inquiries focus on a person's intent at the time of accessing the computer, not on a person's subsequent misappropriation of the information or thing of value obtained from the employer's computer.’  NCMIC Fin. Corp. v. Artino, supra.  

U.S. v. Cave, supra. 

The Magistrate Judge’s R&R then reviewed the arguments both parties made on this issue, beginning with Cave, who argued that

since he at no time altered any information on the database or at no time did he lack the authorization to obtain information from NCJIS, he did not `exceed authorized access’ according to the statute. . . .. Additionally, Cave asserts he was granted full access to the information on the database, thus he did not exceed his authorized use.

U.S. v. Cave, supra. 

The Magistrate Judge then noted that the prosecution argued that Cave did not have

authorization to access the information to begin with because the search was done for an improper purpose. . . . The government does not allege that Cave conducted a proper search and then misused the information; instead the government alleges that the search was improper from the start. . . . The government contends that Cave's searches were not connected to any legitimate law enforcement activity, and therefore were not authorized. . . .

U.S. v. Cave, supra. 

In the R&R, the Magistrate Judge then found that when OPD obtained access to

NCJIS, OPD signed a MOU. The MOU specifically stated use of NCJIS is `for the purpose of improving public safety and improving the ability of criminal justice agencies in the performance of their official duties.’ . . . After OPD signed the MOU and obtained access to NCJIS, OPD trained their officers on the rules and regulations prescribed in the MOU, specifically addressing regulations pertaining to access and disclosure and the confidential nature of the information found on NCJIS. . . .

Cave allegedly accessed confidential information available through NCJIS and provided such information to car dealerships attempting to repossess vehicles. . . . In return, Cave allegedly received money. . . . OPD granted Cave access to NCJIS for the limited purposes set forth in the MOU, specifically, for the purpose of `improving the ability of criminal justice agencies in the performance of their official duties.’ Cave's actions, if proven, fit within the definition of `exceeds authorized access’ because accessing confidential information for personal financial gain is not within the aforementioned purpose.

U.S. v. Cave, supra.  The Magistrate Judge therefore recommended to the U.S. District Court judge that the motion to dismiss be denied.  U.S. v. Cave, supra. 

Cave filed an objection to the R&R with the District Court judge, claiming “the magistrate judge's interpretation `adds the new element of access with “bad intent” and ignores the plain meaning of the words and phrases employed in the statute.” U.S. v. Cave, supra.  The judge did not agree:

Contrary to Cave's argument, the magistrate judge's analysis does not add an element of intent to [§1030] it merely acknowledges the realities of Cave's authorization under the memorandum of understanding. In the R&R, the magistrate judge defines the outer limits of the authorization NCJIS and OPD granted the defendant -- not the limits of the statute. Filing No. 30 at 5 (`OPD granted Cave access to NCJIS for the limited purposes set forth in the MOU . . . accessing confidential information for personal financial gain is not within the aforementioned purpose’).

U.S. v. Cave, supra. 

The judge then pointed out that, as the prosecution pointed out, the United States

Courts of Appeals for the First, Fifth, Seventh, and Eleventh Circuits have come to the conclusion that a person granted access for limited purposes exceeds authorization when he or she pursues other purposes. See, e.g., U.S. v. Czubinski, 106 F.3d 1069 (U.S. Court of Appeals for the 1st Circuit 1997) (`Czubinski unquestionably exceeded authorized access’ when he used a database . . . for an unauthorized purpose); U.S. v. John, 597 F.3d 263 (U.S. Court of Appeals for the 5th Circuit 2010) (`“exceeds authorized access” may include exceeding the purposes for which access is “authorized”’); International Airport Centers, LLC v. Citrin, 440 F.3d 418 (U.S.Court of Appeals for the 7th Circuit 2006); (`Citrin's breach of his duty of loyalty terminated his agency relationship . . . and with it his authority to access the laptop'); U.S. v. Rodriguez, 628 F.3d 1258 (U.S. Court of Appeals for the 11th Circuit) ([government’s] policy . . . is that use of databases to obtain personal information is authorized only when done for business reasons . . . `the plain language of [1030] forecloses any argument that Rodriguez did not exceed his authorized access’ by accessing the database for other reasons).

U.S. v. Cave, supra.  He therefore entered an order denying the motion to dismiss. U.S. v. Cave, supra. 

Tweets, the Basketball Player and the 4th Amendment

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This post examines an opinion the U.S. District Court for the District of Nevada issued in a case involving claims against a “school district and . . . employees of the" district. Rosario v. Clark County School Dist., 2013 WL 3679375 (2013). The plaintiffs are Juliano Rosario and his father Frank Rosario.  Rosario v. Clark County School Dist., supra. They claim the defendants are liable under 42 U.S. Code § 1983 for violating the 1^st Amendment and/or 4^th Amendment. Rosario v. Clark County School Dist., supra. 

The case arises from certain events that occurred when Juliano was a student at Desert Oasis High School. Rosario v. Clark County School Dist., supra. The school district employees Juliano and his father sued,

and their position at Desert Oasis High School are as follows: Emil Wozniak, principal; Ron Isaacs, athletic director and assistant principal; Jim Dinkel, athletic director; Darrel Brown, boys varsity basketball coach; Eric Gygatz, coach; and, Laurie Evans, coach (collectively, `school administrators’).

Rosario v. Clark County School Dist., supra. 

This, according to the opinion, is how the case arose:

Juliano tried out for the school basketball team in the fall of 2012, his senior year. . . .He was originally cut from the team. . . . Frank protested his son being cut with coach Brown and other school administrators. . . . On or around December 4, 2012, Juliano was placed on the basketball team subject to certain conditions. . . .

On or around February 7, 2013, the basketball team played its final game of the season. . . . Following the game, in the evening and after school hours, the Rosario family went to dinner at a restaurant. . . . The restaurant is off-campus. . . . At the restaurant during dinner that evening, Juliano used . . . Twitter to post several `tweets’ about school officials. These tweets are the primary subject of this lawsuit. . . .

Rosario v. Clark County School Dist., supra.  (Later, the opinion says he posted “about eight tweets”. Rosario v. Clark County School Dist., supra.)

These are the redacted versions of the tweets that appear in the opinion:

1. `Mr. Isaacs is a b*tch too’

2. `I hope Coach brown gets f*ck*d in tha *ss by 10 black d*cks’

3. `Now I can tweet whatever I want and I hope one of y'all m*ther f*ck*rs snitch on me’

4.`F*ck coach browns b*tch *ss’

5. `Finally this b*tch *ss season is over’

6. `Aiight I'm done y'all can go snitch now like before’

7. `Oh yeah and Mr. Dinkel's square *ss’

8. `AND Ms. Evans b*tch *ss boyfriend [this is referring to defendant Gygatz] too He a p*ssy *ss n*gg* tryna talk sh*t while walking away’

 

Rosario v. Clark County School Dist., supra. 

“In the days” after he sent the tweets, “school officials, including Brown, Evans, Gygatz and Dinkel, filed a discipline complaint and victim impact statements” against Juliano. Rosario v. Clark County School Dist., supra.  School administrators charged him with cyberbullying. Rosario v. Clark County School Dist., supra.  They also “either suspended Juliano or expelled him subject to an appeal with the school board.” Rosario v. Clark County School Dist., supra. “On or about February 27, 2013,” the appeal panel modified Juliano's disciplinary punishment; the panel reassigned him to a different high school in the school district.  Rosario v. Clark County School Dist., supra.

In this opinion, the federal district court judge who has the case is ruling on the defendants’ motion to dismiss the plaintiffs’ claims against them.  The motion to dismiss would have been filed under Rule 12(b)(6) of the Federal Rules of Civil Procedure.  As Wikipedia notes, the Rule 12(b)(6) motion

is how lawsuits with insufficient legal theories underlying their cause of action are dismissed from court. For example, assault requires intent, so if the plaintiff has failed to plead intent, the defense can seek dismissal by filing a 12(b)(6) motion.

This judge began his analysis of the motion by noting that to “`“state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of State law.’” Rosario v. Clark County School Dist., supra (quoting Long v. Cnty. of Los Angeles, 442 F.3d 1178 (U.S. Court of Appeals for the 9th Circuit 2006)).

He also noted that in ruling on a Rule 12(b)(6) motion to dismiss, the apply the two-step approach the Supreme Court established in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). Rosario v. Clark County School Dist., supra.

First, the court must accept as true all well-pled factual allegations in the complaint; however, legal conclusions are not entitled to the assumption of truth. . . . Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. . . . Second, the court must consider whether the factual allegations in the complaint allege a plausible claim for relief. . . . A claim is facially plausible when the complaint alleges facts that allows the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. . . .

Rosario v. Clark County School Dist., supra.

The judge began with the plaintiffs’ 1st Amendment claim, noting the defendants argued

that (1) Juliano's speech was obscene and therefore not entitled to 1st Amendment protection and (2) that schools may regulate off-campus student speech that causes a substantial disruption on-campus. Plaintiffs counter that defendants violated Juliano's 1st Amendment rights when the defendants disciplined and punished him for the tweets he made at the restaurant following the final basketball game of the season. Plaintiffs argue that Juliano's speech was not obscene and that the school exceeded its authority to regulate off-campus speech in this case.

Rosario v. Clark County School Dist., supra.

As to the first issue, the judge explained that

`obscene material is unprotected by the 1st Amendment.’ Miller v. California, 413 U.S. 15 1973). Speech is obscene if it meets each of the following elements: (1) `whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest’; (2) `whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law`; and, (3) `whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.’ Miller v. California, supra.

Rosario v. Clark County School Dist., supra.

The judgefound that Juliano’s second tweet could not survive the motion to dismiss because it

is obscene as a matter of law. That statement qualifies as obscene . . . because (1) applying contemporary community standards it appeals to the prurient interest, (2) the tweet depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state statute and (3) the tweet, taken as a whole, lacks serious literary, artistic, political, or scientific value. Juliano cannot recover for tweet number two referenced above and any protections afforded by the 1st Amendment do not extend to that statement.

Rosario v. Clark County School Dist., supra.

The defendants argued that

many of the tweets should not be afforded 1st Amendment protections because the tweets are racist, violent, offensive, and hateful. That may well be true. However, defendants' only arguments with supporting case law concern speech that falls outside the protections of the 1st Amendment because the speech is obscene. Juliano's tweets may be offensive, but only tweet number two above is obscene as defined by the Supreme Court in Miller. . . .

Rosario v. Clark County School Dist., supra.

The judge then noted that the

school administrators disciplined and punished Juliano under a cyberbullying statute for all of the above referenced tweets, not for any tweet in particular. It is well-established that schools may discipline students for off-campus speech in certain situations.

Rosario v. Clark County School Dist., supra.  He also noted the “test that has emerged from” the federal Courts of Appeals for analyzing “off-campus student speech, including online social networking speech,” is that school administrators “have the authority to discipline students for off-campus speech that will foreseeably reach the campus and cause a substantial disruption.” Rosario v. Clark County School Dist., supra. 

The judge therefore found that the “plaintiffs have stated a cause of action under § 1983 for 1st Amendment violations as to Juliano's tweets sufficient to survive the motion to dismiss stage, with the exception of” the second tweet.  Rosario v. Clark County School Dist., supra. 

He then took up the defendants’ challenge to the plaintiffs’ 4^th Amendment claim, which was that “the school and its administrators violated Juliano's 4th Amendment rights by searching his Twitter account.”  Rosario v. Clark County School Dist., supra.  He began his analysis of the 4^th Amendment issues by noting that it guarantees that people

shall be `secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ . . .  A person has a constitutionally protected reasonable expectation of privacy when he or she has both a subjective expectation of privacy and that expectation is one society recognizes as reasonable. See Katz v. U.S., 389 U.S. 347 (1967). . . .

Rosario v. Clark County School Dist., supra.  (For more on Katz, see this prior post.)

The plaintiffs claimed “Juliano had a reasonable expectation of privacy in his tweets because his tweets were limited to his followers -- i.e., a limited audience viewed or read Juliano's tweets.” Rosario v. Clark County School Dist., supra.  The judge first noted that

Twitter provides two privacy settings to its user: public and private. If a user maintains a public setting, then any of his or her followers may read the user's tweets. Additionally, anyone searching the internet may view and read a public user's tweets whether or not that person is a follower of the tweeter.

When a user with a public privacy setting tweets a message, he or she intends the message to be heard by the public at large. It just happens that typically the only people that read the tweet are the users' followers. A tweet from a user with public privacy settings is a twenty-first century equivalent of an attempt to publish an opinion piece or commentary in the New York Times or the Las Vegas Sun. When a person with a public privacy setting tweets, he or she intends anyone that wants to read the tweet may do so, so there can be no reasonable expectation of privacy.

Rosario v. Clark County School Dist., supra.  He then noted that when a Twitter user

maintains a private setting, only his or her followers may read the tweet. If a person who is not a follower of a private user's profile searches finds that private user's profile, that person who searched and found the profile may not read any of the private user's tweets (though there could be an exception for `re-tweeting’ that is irrelevant under the facts of this case).

A Twitter user with his or her privacy setting set to private has a more colorable argument about the reasonable expectation of privacy in his or her tweets than a user with a public setting. However, even with a private account, the user is still `disseminat[ing] his postings and information to the public, [and] they are not protected by the 4th Amendment.’ U.S. v. Meregildo, 883 F.Supp. 2d 523 (U.S. District Court for the Southern District of New York 2012).

Rosario v. Clark County School Dist., supra. 

The plaintiffs claimed Juliano had a private account, which the defendants “dispute[d].” Rosario v. Clark County School Dist., supra.  The judge found that whether he had a such an account “is irrelevant". Rosario v. Clark County School Dist., supra.  He found there was no 4^th Amendment

violation because the school administrators accessed Juliano's tweets via one of his follower's accounts. Plaintiffs argue that defendants violated the 4th Amendment because they discovered Juliano's tweets when one of Juliano's followers gave the tweets to administrators. However, it is well-established that when a person shares information with a third party, that person takes the risk that third person will share it with the government. U.S. v. Choate, 576 F.2d 165 (9th Circuit 1978) (`the 4th Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed’); U.S. v. White, 401 U.S. 745 (1971) (`The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government’).

Rosario v. Clark County School Dist., supra. 

The judge also noted that “[t]his logic applies with equal force in the social media context. When a person tweets on Twitter to his or her friends, that person takes the risk that the friend will turn the information over to the government.” Rosario v. Clark County School Dist., supra.   

He T therefore dismissed the plaintiffs’ 42 U.S. Code § 1983 claim for violating the 4^th Amendment.  Rosario v. Clark County School Dist., supra.  The suit, though, goes forward on the 1^st Amendment claim (except as to the second tweet) and on other claims, including a defamation claim against “coach Brown”. Rosario v. Clark County School Dist., supra. 

Fraud, Bolstering and the Laptop

After a jury convicted him “on all counts of a seventeen-count indictment charging mail fraud, wire fraud, bank fraud, and aggravated identity theft”, Steve Soto appealed his conviction to the U.S.Court of Appeals for the 1st Circuit.  U.S. v. Soto, 2013 WL 3156598 (2013). This post examines one of the issues he raised on appeal: whether “he trial court violated his 6th Amendment right to confront the witnesses against him by admitting testimony of a forensic examiner about another examiner's prior examination.”  U.S. v. Soto, supra.

This, according to the opinion, is how the case arose:

On March 27, 2006, Soto brought his girlfriend, Yessica Amaro, to Motorcycles of Manchester (MoM's) in New Hampshire. Soto purchased a 2003 Suzuki motorcycle for Amaro, who was posing as `Christine Escribano.’ Soto told the office manager at MoM's he would bring Escribano's license when he came to pay and retrieve the motorcycle the next day. Although Soto neglected to produce Escribano's license, MoM's completed the sale . . . on March 28, 2006.

On April 1, 2006, Soto and Amaro repeated the scheme at Kelly Power Sports in Danvers, Massachusetts. This time they produced Escribano's driver's license, which a salesperson photocopied, and they purchased another 2003 Suzuki motorcycle. On April 6, 2006, Soto and Amaro continued the charade at North Reading Motor Sports in North Reading, Massachusetts, once again using Escribano's driver's license to purchase two Honda motorcycles. The manager at North Reading Motor Sports made a photocopy of Escribano's license for his records.

Soto paid for the motorcycles with counterfeit cashier's checks, and the dealerships applied for title and registration for the motorcycles with the Massachusetts Registry of Motor Vehicles (RMV) in Escribano's name. Soto then sent counterfeit notarized affidavits to the RMV, transferring the titles to the motorcycles to either his uncle, Salvador Shower, or his friend, Abraham Dominguez. Soto intercepted the `clean’ titles issued by the RMV from the mail of Shower and Dominguez. Once Soto had the titles, another friend posed as either Shower or Dominguez and sold the motorcycles to innocent third parties.

Christine Escribano testified that she had lost her driver's license, and she identified her license from the photocopy made by one of the motorcycle dealerships.

Soto also purchased three automobiles posing as Gregory Bradley, a friend of Soto's who was incarcerated at the time. Soto produced Bradley's driver's license to buy the cars and to obtain financing for the car purchases. . . .

U.S. v. Soto, supra.  (In its opinion, the court noted that “[b]ecause Soto is not contesting the sufficiency of the evidence supporting the charges related to the car purchases, we need not describe this scheme in detail.” U.S. v. Soto, supra.)

That brings us to the laptop:  “Soto moved to suppress incriminating evidence found on a laptop computer seized in an inventory search of one of the automobiles [he] purchased using Bradley's identity”, claiming the seizure of the laptop “violated his 4th Amendment rights.”  The district court judge denied the motion. U.S. v. Soto, supra.  As I noted in a recent post, the 4^th Amendment creates a right to be free from “unreasonable” searches and seizures; “reasonable” searches and seizures are conducted either pursuant to a warrant or to an exception to the warrant requirement.  As I noted, the Supreme Court has held it is “reasonable” to let officers inventory the contents of seized vehicles to ensure nothing dangerous is in the vehicle and to protect themselves from false claims that valuable property is missing from the vehicle. The district court judge denied the motion and Soto apparently did not challenge the inventory search in this appeal.

Instead, he challenged the admission of certain testimony:

At trial, Special Agent Michael Pickett of the United States Secret Service testified about a computer forensics examination he had conducted on the seized laptop. Pickett first testified generally about how a forensics examination is conducted and then identified Exhibit 30 as the hard drive removed from the laptop. Pickett explained that another forensics examiner, John Murphy, had done a forensics examination before him. Pickett testified: `I took the hard drive out of this laptop, I made my own image and I examined the image of the hard drive and I confirmed that everything that was in John Murphy's report was exactly the way he said it was.’

U.S. v. Soto, supra. 

In testifying, Pickett “identified Exhibit 20, which consisted of several documents that were found on the hard drive of the laptop” and also testified as follows:

PROSECUTOR: After you made an image of the hard drive from Exhibit 30, the laptop computer, were you able to print out certain documents that appear on the hard drive?

AGENT PICKETT: I did not make a hard copy printout; however, I used the forensic program called EnCase to find this document, and it was contained in the same folder that John Murphy had said that he had found it in.

PROSECUTOR: So am I correct in understanding that each of the pieces of paper in Exhibit 20 are hard copies of stuff you confirmed were in the hard drive that was in Exhibit 30?

AGENT PICKETT: Yes. I saw this document, this file, looking in EnCase and confirmed that it was on the image of the hard drive that I made.

U.S. v. Soto, supra.  The prosecution then “offered Exhibit 20” into evidence, and Soto's counsel “stated: `Judge, for the record I have to object pursuant to a previous motion I made to the Court, but I do that only for the record.’” U.S. v. Soto, supra.  The district court judge admitted Exhibit 20 into evidence. U.S. v. Soto, supra. 

Pickett was then cross-examined by Soto’s attorney, a cross examination that included the following:

COUNSEL: Just so we're clear, you were the second Secret Service agent to perform forensic work on the laptop, correct?

AGENT PICKETT: That is correct. John Murphy was the original examiner, and then I re-examined it.

COUNSEL: Why did you re-examine it?

AGENT PICKETT: I was asked to.

COUNSEL: By whom were you asked to?

AGENT PICKETT: By Attorney Capin.

COUNSEL: And what was the reason why you were asked to?

AGENT PICKETT: To confirm that everything on John Murphy's report was exactly the way he said it was.

U.S. v. Soto, supra. 

This exchange came at the end of his testimony:

PROSECUTOR: And just one last question. You were asked a number of questions about the original agent, I think Murphy, who analyzed this. Do you know why Murphy isn't here today?

AGENT PICKETT: That is correct. John Murphy has, as part of our normal career transition, has gone on to Washington, D.C. He's now part of what's called our technical security division. He's in charge of the alarms and electronic security at the White House.

U.S. v. Soto, supra. 

As I noted above, Soto claimed this testimony violated his 6^th Amendment right to confront witnesses. U.S. v. Soto, supra.  The Court of Appeals began its analysis of his argument by noting that, because he “did not raise a contemporaneous 6^th Amendment objection to Agent Pickett’s testimony, we review the district court’s admission” of the testimony “for plain error.” U.S. v. Soto, supra.  It explained that to prevail, Soto had to show an error, “that is plain” and that affected his substantial rights.  U.S. v. Soto, supra.  It also explained that if he established all three elements, it could, “in its discretion,” “notice the forfeited” error but if it seriously affected the fairness, integrity or public reputation of judicial proceedings. U.S. v. Soto, supra. 

It then took up the 6^th Amendment issue, explaining that the amendment says that

`In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . .’  In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that the 6th Amendment bars the `admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify and the declarant had had a prior opportunity for cross-examination.’

U.S. v. Soto, supra. 

It also pointed out, however, that a “critical part of the Crawford” Court’s holdingis the

phrase `testimonial statements.’ Only statements of this sort cause the defendant to be a `witness' within the meaning of the Confrontation Clause. It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.

U.S. v. Soto, supra.  The court also noted that the Supreme Court has yet to “supply `a comprehensive definition of testimonial’”, but has provided an “illustrative list” of the “`core class of “testimonial” statements”.  U.S. v. Soto, supra.  The list is as follows:

(1) `ex parte in-court testimony or its functional equivalent -- that is, material such as affidavits, custodial examinations, prior testimony the defendant was unable to cross-examine, or similar pretrial statements declarants would reasonably expect to be used prosecutorially,’ (2) `extrajudicial statements . . .  in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,’ and (3) `statements  made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’ 

U.S. v. Soto, supra (quoting Crawford v. Washington, supra). The court noted that in Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011), the Supreme Court held that “a blood alcohol content report can be used against the defendant only if [he] has the opportunity to confront at trial the analyst who performed, observed, or supervised the forensic examination.” U.S. v. Soto, supra.  It also noted that in Williams v. Illinois, 132 S.Ct. 2221 (2012), the Court was divided as to whether crime lab reports can be used at trial if the analyst who prepared them did not testify. U.S. v. Soto, supra. 

The Court of Appeals then held that Pickett did not testify as a surrogate witness for Murphy:

Bullcoming was . . . arrested for driving while intoxicated. At trial, the government introduced into evidence a laboratory report certifying [his] blood alcohol content was above the legal limit. The report was authenticated at trial by an analyst who was familiar with the laboratory's testing procedures but otherwise had nothing to do with the test. . . . The Court explained that the testifying analyst provided impermissible `surrogate testimony’ because the testifying analyst had no knowledge about the test of Bullcoming's blood alcohol content or the analyst who performed the test. . . .

Unlike in Bullcoming,  Murphy's forensic report was not introduced into evidence through Pickett. Pickett testified about a conclusion he drew from his own independent examination of the hard drive. The government did not need to get Agent Murphy's report into evidence through Agent Pickett. . . .

We do not interpret Bullcoming to mean that the agent who testifies against the defendant cannot know about another agent's prior examination or that agent's results when he conducts his examination. The government may ask an agent to replicate a forensic examination if the agent who did the initial examination is unable to testify at trial, so long as the agent who testifies conducts an independent examination and testifies to his own results.

U.S. v. Soto, supra. 

It also found Soto's argument that Murphy's report bolstered Pickett's testimony hit closer to

the mark. . . . Pickett testified that the incriminating documents in Exhibit 20 were found on a laptop . . . seized from Soto's car. Although Pickett had independent knowledge of that fact, he testified that `everything that was in John Murphy's report was exactly the way he said it was,’ and that Exhibit 20 `was contained in the same folder Murphy said that he found it in.’ `[I]f what the jury hears is, in substance, an untested, out-of-court accusation against the defendant  . . .the defendant's 6th Amendment right to confront the declarant is triggered.’ U.S. v. Meises, 645 F.3d 5  (U.S. Court of Appeals for the 1^st Circuit 2011).  

These two out-of-court statements attributed to Murphy were arguably testimonial and offered for their truth. Pickett testified about the substance of Murphy's report which Murphy prepared for use in Soto's trial. Murphy's conclusion in his report, which Pickett repeated, was offered to show that the Exhibit 20 documents were located on the hard drive of the laptop seized from Soto's vehicle. Pickett's testimony about Murphy's prior examination of the hard drive bolstered Pickett's independent conclusion that the Exhibit 20 documents were found on Soto's hard drive.

U.S. v. Soto, supra. 

But while the court found this violated the 6^th Amendment’s Confrontation Clause, it also found the violation “was not plain error.” U.S. v. Soto, supra.  It noted that if Soto’s lawyer had made a

contemporaneous 6th Amendment objection or objected to Murphy's absence, the trial court could have given a curative instruction, or the government could have produced Murphy to testify. . . .Furthermore, Murphy's out-of-court testimonial statements linking Soto to the Exhibit 20 documents were entirely cumulative of Pickett's in-court testimony regarding his own independent examination. The admission of Pickett's statements about the conclusions in Murphy's report did not affect Soto's substantial rights. We conclude there was no plain error.

U.S. v. Soto, supra.  For these and other reasons, the court affirmed Soto’s convictions and sentence. U.S. v. Soto, supra.